The kill bill

Labour’s promise to introduce corporate killing legislation is being bogged down by the details. Gordon Hall brings you up to date

Seven years ago the Labour Government promised to introduce a new corporate killing law. The drive towards this new law was driven in part from a string of transport-related disasters in the late 1980s, such as the sinking of cross-Channel ferry the Herald of Free Enterprise in 1987, the oil platform Piper Alpha disaster in 1988, and the Marchioness Thames river boat collision in 1989. More than 400 people lost their lives in these three disasters, but no one individual or organisation was brought to account.

Victims’ groups and trade unions feel, as Jack Dromey, Secretary-General of the Transport and General Workers Union (TGWU), puts it, that “business is getting away with murder”. Under the current law, the difficulty of apportioning blame to corporations or individuals within complex management structures has meant that there has been only a handful of successful corporate manslaughter prosecutions over the last 30 years.

However, a new corporate killing law is proving hard to draft. The Home Office went through a consultation period in 2000, but little progress has since been made. The exclusion of any mention of a new bill from the Queen’s Speech last November infuriated unions and victims’ groups alike.

The TGWU is particularly vociferous in calling for a new law. The union drafted its own bill in June 2003. Two months ago, the bill was borrowed by backbench MP Frank Doran, and it became the basis for his private member’s bill, which is due to get its second reading on 16 July. Essentially, Doran’s bill is designed to encourage the Home Office to publish its bill and to ensure that the legislation does not fizzle out and die.

One of the key stumbling blocks to the Home Office bill is the issue of Crown immunity, which poses the question of whether government bodies should also be subject to the new law. For many commentators, it is extraordinary that government organisations should have immunity from prosecution for negligent management when they carry out the same functions and activities as those private commercial companies that will be in the firing line. On the other hand, removing immunity for Crown bodies may involve the Government in a constant cycle of costly self-prosecution.

Last Monday (28 June), Norton Rose organised a debate on the topic, which allowed regulators, legislators and senior industry representatives to come together, under Chatham House rules, to discuss the pros and cons of the new legislation. Speaking on the panel were Doran, Mike Welham, the principal inspector of the Health and Safety Executive (HSE), Rob Andrews of the Strategic Rail Authority and Tom Barton, deputy regional manager of contractor Sir Robert McAlpine.

Transport companies from the shipping, aviation and rail sectors were well represented in the audience. Should the legislation ever reach the statute books, transport companies, alongside those in the construction, energy and agricultural sectors, could find themselves at the sharp end of a corporate killing law. There is evidence that the HSE is becoming more willing to prosecute companies for corporate manslaughter and to impose maximum penalties for health and safety breaches. Thames Trains, for example, was fined £2m in April 2004 for training its drivers inadequately, which contributed to the Ladbroke Grove train crash. This is the largest fine awarded to date.

Concern in industry is palpable, as is its cynicism about the new proposals. According to a recent Norton Rose report on corporate killing, 60 per cent of businesses thought the proposed corporate killing legislation was simply a political manoeuvre on behalf of the Government, rather than a genuine desire to improve health and safety. Many senior safety directors believe that the only way to improve safety is to change the corporate culture from the top down, and that legislation will not significantly change people’s attitudes.

Several legal experts and industry spokespersons at the Norton Rose debate questioned whether the legislation was required at all. Some put forward the point that health and safety offences are already punishable with unlimited fines, and so questioned whether there is actually a need for a new corporate killing offence, which in any event will not involve any extra penalties. The law already imposes effective sanctions, and fatal incidents tend to be a combination of management failures, human errors and other unique failures that come together on a particular day. Often there is no one individual who is responsible, or no readily visible trail of corporate mismanagement.

Some transport companies expressed the fear that the new offence will lead to scapegoating or witch-hunts. “We know what the press will do [if there is a large fatal disaster], and we’re suspicious of politicians,” said one attendee. “A bad law leads to unfair convictions. And if this is seen as a risk, safety will go down.” There are concerns that fears about the new law will discourage openness and drive transparent reporting underground.

Most of the audience felt that even if a company had in place robust and recognised safety mechanisms and had been “generally responsible”, this would not protect them against being prosecuted or be a guarantee of a fair trial in the unfortunate event of a major fatal accident and the consequent force of public emotion.

However, industry does recognise the need for measures to deal with companies that are being negligent and escaping charges; it also needs to raise safety up the boardroom agenda. Half of the industry directors surveyed by Norton Rose in its corporate killing report think the current corporate manslaughter legislation is inadequate, while a significant proportion of industry accepts that there has to be some form of new legislation – but fears appear to revolve around the lack of clarity from the Home Office as to what the law will actually mean in practice. What actually will constitute a grossly negligent company?

Many industry bodies believe that there should be some obvious criteria for judging when management conduct falls far below what is acceptable, such as: the gravity of the offence (was it a continuing failure to control risks or a one-off event?); the experience and history of the company (is the company a regular health and safety offender? Has it ignored repeated warnings?); and the motive (is the company trying to cut corners to maximise profit? Or is it a genuine unforeseeable event, ie a real accident?).

Until the Home Office issues more clarity about the impending law, companies will continue to be fearful. They will continue to believe that the new law will unfairly target large companies over smaller ones. They will continue to wonder what, if anything, the new law has to do with improving safety in real terms.

Towards new corporate killing legislation

February 1965: Pressure for corporate killing law originally traces back to the death of Glanville Evans, who was killed in 1965 when the bridge on which he was working collapsed.

March 1987: 193 people die when a car ferry capsizes outside the Belgian port of Zeebrugge. In 1989, the Crown Prosecution Service (CPS) charges P&O Ferries with corporate manslaughter and seven employees with manslaughter. Although this set a precedent for corporate manslaughter being legally admissible in an English court, the case eventually collapsed.

December 1994: The first of only three successful prosecutions for corporate manslaughter sees leisure company OLL convicted after four schoolchildren in its care dies in a canoeing accident in Lyme Bay, Dorset.

March 1996: The Law Commission publishes a report under the Conservative government on involuntary manslaughter and a draft bill for consultation. The bill recommends that there should be a special offence of ‘corporate killing’, corresponding broadly to the individual offence of death by gross carelessness. The Conservative government sets up an interdepartmental group to consider recommendations and make proposals, and the Law Commission’s recommendations are largely accepted by the Home Office.

1996: The second successful corporate manslaughter prosecution is brought against the managing director of Jackson Transport, following the death of an employee who inhaled chemicals.

May 1997: New Labour comes to power, bringing the election promise that it will introduce new and more effective corporate manslaughter legislation.

October 1997: Jack Straw, then Home Secretary, announces plans for a new corporate killing law at the Labour Party Conference.

September 1997: Seven people die and 150 people are injured when an express train collides with an empty freight train crossing the main line at Southall, West London.

April 1998: Simon Jones is killed at Shoreham Docks by a crane’s grab claw, adding impetus to lobby for greater punishment and deterrent.

Dec 1999: The third and – to date – the final successful corporate prosecution manslaughter charge is brought against directors of a haulage firm, Roy Bowles Transport, after it was found guilty of ignoring the excessive working hours of its driver, who fell asleep at the wheel, killing two motorists.

May 2000: Following on from work completed in 1996 by the Law Commission, the Government publishes draft proposals to create the new offence of corporate killing and three new offences to cover individuals who cause death by recklessness or gross carelessness. The document is called ‘Reforming the Law on Involuntary Manslaughter: the Government’s Proposals’.

December 2000: Corporate killing legislation is mentioned in the Queen’s Speech, but fails to reach Parliament this session.

October 2000: Hatfield train crash leaves four people dead.

2001: The Government reinforces its commitment to new legislation making directors and large companies more accountable by pledging in its May election manifesto that “law reform is necessary to make provisions against corporate manslaughter”.

March 2002: The Government claims that it is “committed to introducing legislation on the issue as soon as parliamentary time allows, but there is no timetable”.

April 2002: The ‘Corporate Killing – Implications for the Public Sector’ conference is held in London, at which results from a survey conducted by the British Safety Council are presented.

May 2002: Potters Bar rail crash leaves seven dead.

Oct 2002: The Government decides that plans to make company directors individually liable for major disasters are unworkable, having arguably bowed to pressure from business groups. Amendments are made to concentrate punishment on companies.

Nov 2002: It is reported that the Government will not be including the necessary legal reforms in the Criminal Justice Bill announced in the Queen’s Speech, but that it has pledged to introduce legislation “as parliamentary time allowed”.

May 2003: During consideration of the ‘Report of the Criminal Justice Bill’, the Home Secretary says the Government will announce a timetable for legislation and that it intends to publish a draft bill. The key delay appears to be over Crown immunity.

April 2004: Thames Trains is fined a record £2m at the Old Bailey for “serious omissions” in driver training, which contributed to the Ladbroke Grove train crash. This is the largest fine awarded to date in a health and safety prosecution.

July 2004: The second reading of the private member’s bill brought by Frank Doran MP to create a new offence of corporate killing, applying to all companies and incorporated bodies.